The Pacific Rim Law & Policy Journal is published three times a year
by students of the University of Washington School of Law. The Journal, which is
available in print and online, features analysis of legal issues and developments
in jurisdictions bordering the Pacific Ocean, including Asia, Oceania, and South
American countries.
We welcome the submission of articles involving issues of domestic law in a Pacific
Rim nation or an issue of international or comparative law relating to one or more
Pacific Rim nations. We also welcome the submission of English translations of Asian
language legal sources and scholarship.
Volume 21
| Number 2
| March 2012
THE BRAVE NEW WORLD OF LAWYERS IN JAPAN REVISITED: PROCEEDINGS OF A PANEL DISCUSSION ON THE JAPANESE LEGAL PROFESSION AFTER THE 2008 FINANCIAL CRISIS AND THE 2011 TŌHOKU EARTHQUAKE
Bruce E. Aronson
21 Pac. Rim L. & Pol'y J. 255
In the United States, the 2008 financial crisis had a serious impact on a legal profession that had been growing strongly for three decades, highlighting fundamental issues concerning the business and educational models of both law firms and law schools. This raises the interesting question of how Japan, with its much shorter history of large law firms and professional law schools, has been affected by the 2008 financial crisis and the 2011 Tōhoku earthquake, tsunami, and nuclear reactor crisis. At a recent conference sponsored by the University of Washington School of Law and the law firm of Perkins Coie, a distinguished group of legal practitioners from the leading Japanese and foreign law firms in Tokyo engaged in a panel discussion on the current state of Japan’s legal profession. The panelists saw both the 2008 financial crisis and the Tōhoku earthquake as “one-time” events that will not have a significant longterm impact. The 2008 financial crisis, although it had a lesser economic impact in Japan, raised fundamental issues similar to those in the United States concerning the appropriate models for large law firms and law schools. Despite a number of current problems, the panelists supported the goals and direction of recent Japanese reforms, which have overhauled the system of legal education and increased the number of lawyers, and they explicitly embraced a new model for the legal profession: rather than the traditional small elite with a narrow societal role, the Japanese bar would be significantly expanded and compete to fill a wide range of law-related roles in society.
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A BATTLE BETWEEN LAW AND SOCIETY IN MICRONESIA: AN EXAMPLE OF ORIGINALISM GONE AWRY
Brian Z. Tamanaha
21 Pac. Rim L. & Pol'y J. 295
Two conceptions of the relationship between law and society appear to compete: the idea that law mirrors society and the notion that a gap exists between law and society. Both ideas have some truth—law is an imperfect mirror of society. For various reasons, law and society can fall out of sync or even come into conflict. The 1975 Constitutional Convention, which led to the formation of the Federated States of Micronesia (“FSM”), marked the beginning of a battle between that society and its legal institutions. The Constitution’s framers strove to preserve traditional Micronesian culture by ensuring it a respected place alongside modern legal doctrine. Competing influences, however, conflicted with traditional norms. Despite the reluctance of the framers, the laws of the United States supplied the language for key provisions of the Constitution, and U.S. legal precedents strongly influenced judicial interpretations of the Micronesian Bill of Rights and other constitutional provisions. This put the legal system in tension with Micronesian norms, and the ensuing battle between law and society continues to this day. Yet law need not battle society, even when the social and legal systems, with inconsistent norms and competing systems of power, are poised to clash. Whether or not they battle depends largely upon the attitudes toward each system taken by the actors involved.
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WHY LAND TENURE REFORM IS THE KEY TO POLITICAL STABILITY IN TONGA
Kersti Harter Kennedy
21 Pac. Rim L. & Pol'y J. 327
The Kingdom of Tonga, a South Pacific country, erupted in violent prodemocracy riots in late 2006 after decades of political unease. Tonga’s people are divided into two main classes: the nobles and the commoners. These two classes have long differed in political and land rights in a hierarchy that is typical of chiefdoms such as Tonga. Tonga’s government has attempted to deal with the sometimes violent, commoner-led pro-democracy movement by amending its Constitution to allow commoners to vote for more of the members of the Legislative Assembly. The resulting government and the noblemen have not, however, shown a commitment to land reform in favor of commoners, and it is unlikely that the recent amendments will result in changes
to the land tenure system. In Tonga, the rising population and declining land productivity within a context of insecure land rights have prompted individuals to engage in conflict with the government and nobility, both of which have become less powerful.
Evolutionary ecology predicts this result, and, in conjunction with insights from economics, is also a fertile approach for finding solutions to political instability. This comment argues that only extensive land reform will likely end political violence in
Tonga. It suggests changes in the Constitution and the Land Act to end or reduce the nobles’ power over commoner lands, to allow for more commoners to occupy land, and to improve the productivity of commoner lands. These changes would require Tongans to place individual liberties above some cultural traditions.
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SEPARATION OF RELIGION AND STATE IN JAPAN: A PRAGMATIC INTERPRETATION OF ARTICLES 20 AND 89 OF THE JAPANESE CONSTITUTION
Andrew B. Van Winkle
21 Pac. Rim L. & Pol'y J. 363
Article 20 of Japan’s Constitution establishes freedom of religion. To protect this freedom, the provisions of Articles 20 and 89 separate religion from the state to prevent the return of State Shintō. Despite this separation, the Japanese Supreme Court has consistently upheld instances where state entities interact with religious groups. These decisions have raised the ire of numerous academics and legal professionals in and out of Japan who believe that Japan’s constitutional separation requires absolute separation, or at least something more stringent than the Supreme Court has been willing to find. Although this comment rejects the approach taken by the Supreme Court in these cases, it also seeks to rebut the arguments of scholars and professionals opposed to these decisions by reinterpreting these articles in a way that still comports with the results reached in these Supreme Court cases.
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MALAYSIA’S WORLD TRADE ORGANIZATION CHALLENGE TO THE EUROPEAN UNION’S RENEWABLE ENERGY DIRECTIVE: AN ECONOMIC ANALYSIS
Michael W. Meredith
21 Pac. Rim L. & Pol'y J. 399
Recent negotiations between Malaysia and the European Union (“EU”), aimed at establishing a free trade agreement, have come to a standstill, due in part to a policy implemented by the EU known as the Renewable Energy Directive. The Renewable Energy Directive grants a tax credit to renewable fuel sources that emit at least 35% less greenhouse gas than traditional fossil fuels. Malaysian officials have criticized the 35% level included in the EU policy because it grants a tax credit to rapeseed oil biofuel, produced mainly in Europe (which emits 38% less greenhouse gas than traditional fossil fuels), but does not extend the credit to imported Malaysian palm oil biofuel (which emits about 19% less greenhouse gas than traditional fossil fuels). Malaysia asserts that the 35% standard is arbitrary and uses environmental policy to achieve unrelated protectionist ends at the expense of Malaysian producers. Malaysian officials have even gone so far as to threaten a lawsuit against the EU at the World Trade Organization (“WTO”), arguing that the policy’s differential treatment of rapeseed oil biofuel and palm oil biofuel violates the WTO’s policy of non-discrimination. The WTO policy of non-discrimination stands for the proposition that like products should not be taxed or sanctioned differently simply due to their nation of origin. Traditionally, to determine if two products are alike within the meaning of the non-discrimination principle, the WTO compares the physical characteristics of the products in question as well as their end use in the consumer market. Because both EU- and Malaysianproduced biofuels are used for the same purpose and look almost identical, many commentators have suggested that the two products should be considered alike and that a Malaysian suit challenging their differential taxation under the EU Renewable Energy Directive would be successful. Malaysia’s proposed suit, however, raises a number of questions for the international trading arena that cannot effectively be addressed by traditional methods of determining likeness. Therefore, this comment suggests that the WTO should use this opportunity to adopt an economic, market-based approach to its likeness determinations, which would not only more completely and correctly address the relationship between Malaysian and EU-made products, but also indicate that Malaysia’s proposed suit should fail.
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